Page 6, 24th October 1986

24th October 1986
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Page 6, 24th October 1986 — Charting a moral role for the Law

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Organisations: King's College, London


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Charting a moral role for the Law

Law and Morals Warnock, Gillick and Beyond by Simon Lee (OUP, hardback £12.95, paperback £3.95).

THIS SHORT and very readable book written by a Lecturer in Law at King's College, London, introduces the general reader to the relationship between law and the enforcement of morals.

In the first seven chapters, the author sets out his programme and argues that previous approaches are unsatisfactory or incomplete. He dismisses the "moral majority's" tendency to equate immoral with punishable by criminal law, and uses telling quotations from Aquinas and official church documents to show that this is not Catholic teaching. He shows that the liberal view is not to be equated with moral neutralism of anarchy, but is committed to the moral value of autonomy, which may well entail support for intervention by law to protect people from coercion.

He next shows that basic elements in law (tort, contract, land law) have moral bases, even where the immediate interest seems more narrowly "economic".

If law is not morally neutral, which particular moral values should it enforce? Lee shows the unsatisfactory nature of Mill's principle of legal prohibitions only on grounds of harm to others; it is both too narrow and too broad. Its conflict with paternalism is, however, not as absolute as might appear in the common caricature. The HartDevlin controversy which followed the Wolfenden Report

On Homosexual Offences and Prostitution is succinctly summed up for the way in which it refines the criteria for restraint in enforcement of morals by law.

The significance of the debate now seems to be in the complementary approach of the protagonists, the recognition of society's interests in morality, and the justification for intervention for the individual's own physical good: in a word a degree of "paternalism". But this is still a defective, basically "harm-to-others" justification for legal prohibition, failing to slow up the real sources of disagreement over how the law should respond to the moral analysis of society's problems.

Lee suggests the procedural rule, rather than a general solution for dissolving some of the controversy, or at least locating it accurately.

This might also help society in the process of making decisions. First distinguish between moral outlooks, assumptions and premises. Secondly distinguish these carefully from "factual predictions", that is disagreements about the consequences of alternative policies or suggestions about what the law should do.

Although both of these may still be irreconcilable we shall know more clearly what is really at issue. For public policy it may be possible to appoint a supercommittee to produce careful research on the pros and cons of the competing social policies and their likely outcomes, to structure debate, to educate and to give authoritative guidance. Well — perhaps. In the second half of the book the author applies his distinction to the Warnock Report (utility and feeling — or moral intuitions; surrogate motherhood; embryo experimentation) and to the Gillick case (contraception and rights of children and parents), his longest chapter.

Short chapters on informed consent in medical practice (the Sideway case in 1985) and medical resource allocation (a refusal to continue kidney dialysis treatment) are rather sketchy and incomplete. A longer discussion would have helped to make the valid point that law and morality flow over into politics and justice, and that law is only one way of deciding how to arrange our priorities, and not necessarily the best way.

A further chapter on equality and discrimination takes up the current concern about AIDS and discrimination against homosexual people, and then hurries through the dilemmas of toleration of groups and individuals versus the maintenance of overriding rights and justice. So the question is not so much "which morality should society reflect and encourage?"

A chapter on liberty, freedom of expression and pornography is too ambitious for its length, and really strays into the territory of censorship, secrecy and national security.

The outstanding virtue of this book is the brevity with which it deals with such a substantial list of subjects. Nobody can pretend to find it too long or too difficult, though it does make demands and stimulate questions. Even for those who disagree with its conclusions, it is important. No non-Catholic can pretend that the Church simply tries to enforce its specific morality through the law and that Catholics are irrational purveyors of a party line.

I have a few reservations. Simon Lee's division between moral assumptions and "factual predictions" leads to two tendencies which greater space might have clarified. The watertight status of moral assumptions, intuitions, almost feelings or even propositions based on faith, seems to undervalue the possibility of rational moral argument and discourse, except in tares ca purely.internal consistency.

On the other side "facts" arc a good deal more slippery than they appear. In themselves they may be dubious, or perceived differently. The procedures and methods of social analysic whether in explaining pas! causality or in predicting future consequences are highly comples. Then, is the dispute over embryo experimentation really one of fact (is it a human being?) or value (may we do this to a human being?)

My second worry is that Lee's concern to emphasise that liberalism is not morally neutral, could suggest that its nuanced emphasis on moral autonomy is

lust one among a variety of competing moral attitudes. In a pluralist but democratic society there are some values which are "more" fundamental. For Catholics in particular there is a need to examine the apparent tension between truth and pluralism — the "wider ecumenism" — a path which the Vatican document on religious heedorn opened up. Another book Mr Lee? Anyway, many thanks for this one.

Nicholas Coote

The reviewer is Assistant General Secretary of the Bishops' Conference of England and Wales.

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